north carolina. surrogate motherhood

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surrogate motherhood in north carolina

Surrogacy law in North Carolina

North Carolina does not have any definitive law which directly addresses surrogacy. Neither the General Assembly nor North Carolina Appellate Courts have legislated or ruled on the issue. In Chapter 49A of the North Carolina General Statutes, the General Assembly did address the issue of artificial insemination. Section 49A-1 is entitled "Status of child born as a result of artificial insemination" and reads: Any child or children born as the result of heterologous artificial insemination shall be considered at law in all respects the same as a naturally conceived legitimate child of the husband and wife requesting and consenting in writing to the use of such technique.

While this statute covers artificial insemination by a husband and wife, it does not address gestational surrogacy, artificial insemination surrogacy, or surrogacy contracts. The current statutory and case law in the State of North Carolina contemplates traditional family building options. This fact has resulted in awkward application of this traditional law in surrogacy situations. North Carolina's traditional approach.

North Carolina common law presumes that a delivering mother's husband (either at the time of conception or at the time of the delivery of the child) is the father of the child. See Wright v. Wright, 281 N.C. 159, 188 S.E.2d 317 (1972). This presumption may be rebutted where there is clear proof to the contrary. In gestational surrogacy where the surrogate mother is married, the law would presume, without dispositive court proceeding, that the surrogate mother's husband was the father of the child.

The mother of an illegitimate child may bring an action to establish paternity. (N.C.G.S. 49-14). Establishment of paternity shall be beyond a reasonable doubt, but does not have the effect of legitimation. North Carolina law considers the delivering female to be the mother of the child. A father of a child sired out of wedlock may render the child legitimate by petitioning Superior Court (N.C.G.S. 49-10) or by a subsequent marriage to the mother of the child. (N.C.G.S. 49-12). Legitimation of the child establishes lawful parental privileges, rights, and obligations, and entitles the child to inherit from the father, as if born in lawful wedlock. (N.C.G.S. 49-11).

In gestational surrogacy where the surrogate mother is unmarried, the law would, without dispositive court proceeding, consider the child to be born out of wedlock. Any child born as the result of heterologous artificial insemination within wedlock or within the usual period of gestationthereafter is presumed legitimate if both spouses have consented in writing to the use of artificial insemination. (N.C.G.S. 49A-1). Presumably, by the use of the word "heterologous", this statute would apply to inseminations using genetic material supplied by third parties implanted in the wife. The statute does not mention surrogate insemination.

While many natural parents in a surrogacy situation do not wish to adopt their own genetic offspring, and while adoption in North Carolina subjects the adopting parents to a preplacement and postplacement review (a/k/a home study) by the Department of Social Services or other licensed agency, it is nonetheless available as a means to complete a surrogacy situation in North Carolina.

Chapter 48 of the North Carolina General Statutes controls adoption. Each form of adoption is dealt with separately in the statute, to wit: independent placement adoptions, Department of Social Services and licensed agency adoptions, stepparent adoptions, and adult adoptions. As stated previously in the overview, surrogacy situations without agency assistance are treated as third party independent private adoptions. It is possible, however, that a genetic father's rights could be established through a paternity hearing, and then a stepparent adoption occur.

In third party private independent adoption, a consent form needs to be obtained from the surrogate mother, and, with a few exceptions, the putative father. (N.C.G.S. 48-3-601ff.). For a child less than three months of age, the consenting parent is allowed to revoke a consent for a period of twenty-one (21) days after proper execution of the consent form. (N.C.G.S. 48-3-608). Hearing or disposition on an adoption petition should occur no later than six (6) months after the adoption petition is filed. (N.C.G.S. 48-3-603).

The father of an illegitimate child may seek custody of the child upon and after the establishment of paternity. (N.C.G.S. 49-15). Court action would thus be necessary for a biological father to seek custody in a surrogate situation. (Any parent who willfully neglects or refuses to provide adequate support for and maintain an illegitimate child is guilty of a misdemeanor in North Carolina. (N.C.G.S. 49-2).

North Carolina's adoption code prohibits advertisement in any periodical or newspaper, or by radio, television, or other public medium, that any person will place or accept a child for adoption, unless that person is an agency or an adoption facilitator. (N.C.G.S. 48-10-101). Violation of this advertisement prohibition is a crime.

Except as specifically enumerated in N.C.G.S. 48-10-103, the North Carolina adoption statute also prohibits payment of money or anything of value, directly or indirectly, for placement, consent, or relinquishment for adoption. (N.C.G.S. 48-10-102). Again, theoffer or making of such unlawful payments is a crime. As a general proposition, parties can privately agree to engage in, or undertake actions, except to the extent that the purpose of the contract is to conduct an immoral or illegal action, or to the extent that such a contract would contravene public policy. It is uncertain whether a surrogacy contract in North Carolina would be enforceable, and thus surrogacy contracts have dubious enforceability.

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